PicRights - dos and dont's?

[Jblake]

Hi there. My first post here. UK based. This site looks like a great source for how to deal with PicRights. However, I am a bit overwhelmed with info, and it would be useful if someone could give me a list of dos and don'ts in terms of drawing up a response to PicRights. Is that possible? Assistance is greatly appreciated. Like for many. times are hard, but we had a recent cancer diagnosis in the family too which we are trying to deal with. Also I have depression, anxiety and I am autistic and I am finding this PicRights stuff very unsettling. It's like they are trying to get people to end their lives. Sorry, I know the finance and health stuff is irrelevant to the case, but having a guideline of dos and donts would be very helpful and should provide some structure with how to deal with them....and I understand it is not legal advice. The email I plan to respond to is this one: "Unlicensed Use of Reuters News & Media Inc Imagery - Reference Number: ……………..
PicRights provides licencing compliance services to third-party content owners, including Reuters News & Media Inc: https://www.reutersagency.com/en/protec ... ht-rights/.
We recently sent you a notice that Reuters News & Media Inc's imagery being used on your website, social media or in media accessible from your website. According to Reuters News & Media Inc's records, neither Reuters News & Media Inc nor any of its partners have issued a valid licence to your company for the use of that imagery.
A copy of the imagery and the screen capture of the usage of this imagery found on your website, social media or in media accessible from your website are included at the end of this correspondence and can be viewed by visiting:
………………………………………………
The image in question is a rights-managed image represented exclusively by Reuters News & Media Inc (‘Reuters’). The use of rights-managed images represented by Reuters requires a licence covering each and every use, and a payment in relation to the unauthorised past usage is required to resolve the matter completely.
To Resolve This Matter - …………………..
We kindly ask you to take one of the following actions within 14 days of the date of this correspondence:
If your organisation holds a valid licence or other authorisation for the use of the imagery, please provide the corresponding document by visiting https://..... Password: ………. and clicking on the “I have a licence…” link.
If such documentation is confirmed by Reuters News & Media Inc, the matter will be closed.
If your organisation does not hold a valid licence or other authorisation for the use of the imagery, regardless of whether or not you were aware of the licensing requirements for the use of the imagery, please remove the imagery from your website, social media or in media accessible from your website and make a settlement payment of £660.00. The payment options are listed at the end of this email.
Please, contact us with your reference number …….. at ...@picrights.com :
if you would like to discuss the usage of the imagery going forward,
if you have other requests in relation to this email,
or if you believe you have received this email in error.
On behalf of PicRights and Reuters News & Media Inc, thank you for your cooperation and we look forward to assisting you in resolving this matter.
Sincerely"

[Jblake]

Sorry, I meant to add, to my original post, that I think the £660 is a bonkers amount. Similar but not identical images are on other photo websites for under £20. I also find their "unlicensed use" comment a bit presumptious, as they have not provided proof of copyright ownership, they have not provided proof that the image is exclusive to Reuters, and they have not provided proof that the image of Reuters is the exact same image as the one they are stating {rather than alleging} has been infringed. I am not saying that I am innocent, but I think surely these are the kind of things they would have to prove to state "unlicensed use" instead of "alleged unlicensed use"? It seems a bit like they are trying to get people to prove innocence, rather than PicRights trying to prove guilt? Maybe it is all part of their psychological game?

[Jblake]

...and just for clarity, my aim is to minimise any settlement amount to them. Can't afford their extortionate figure.

[AndyJ]

Hi jblake and welcome,

I don't think a specific list of do's and don't's is really possible as each case wlll have slightly different circumstances. Probably the only 'don't' I would recommend is 'Don't admit liability'. While you may think that you are in the wrong, there may be extenuating factors about the use of the inage which makes it subject to one of the fair dealing exceptions (see Chapter III of the Copyright Designs and Patents Act 1988). Also if you can show that someone else was responsible for putting the image on your website/blog without your knowledge or permission, it may be that you are not personally liable. However you probably won't know, without consulting a lawyer, whether any of these things might apply in your particular circumstances, so it is best not to cut off avenues for a future defence by admitting liability.

On the general 'do' side, I would recommend taking a firm line which demonstrates that you know that in a civil claim, the remedy is to put the claimant (the copyright holder, not their agents or their agent’s agents) in the position he or she would have been in if the correct licence had been obtained before the image was used. The words 'correct licence' include the fact that a reasonable person would obtain the cheapest licence if the image was available from more than one source with different levels of fees. Images which Reuters offer are frequently newsworthy and therefore they can command higher licence fees while that newsworthiness exists. Because they mainly deal with news organisations their licence terms often limit the number of occasions the image can be used (for instance in print) or length of time the image can remain on a website, for example. However stock agencies like Alamy or Shutterstock, which frequently provide the same pictures, will offer simpler and cheaper licences and are intended for a different user group. It's rather like choosing to buy your food at Fortnum & Masons, or Lidl.

As you say, your personal circumstances are irrelevant when looking at your (legal) liability for copyright infringement, but they may be relevant to PicRights when they are assessing the chances of pursuing the claim to a successful conclusion (for them). If you clearly have no money or are a declared bankrupt for example, then there is less chance they will succeed in getting the full amount of their demand, so this may affect their decison matrix. As I often say, the process of negotiating a reasonable settlement is rather like a poker game, and much depends each player’s perception of the strength of their opponent’s hand.

I hope this goes some way towards answering your question.

[Jblake]

Thanks Andy for your response. I can't see what is in it for you spending your own time helping people, but I appreciate it.

Like I say, I am not trying to wriggle out of this, I am just trying to reduce the figure to a sensible level.

I looked for other examples of the same image using google image search, but I cannot find the exact same image on the likes of alamy, shutterstock etc..

However, I have found several, tens if not maybe even a hundred images which are similar on stock photo sites, and typically available in bundles of 5 photos for £29, or 5 photos for $40, those kinds of prices. So, under £10.

Can I argue {successfully} that for the purposes of my website, that any of these much cheaper images would have worked perfectly well, and that that becomes the market rate instead of £660?

If I can argue this successfully, I am wondering what kind of amount of money to offer them, that IF this went to court, my offer would not irritate the court. Although my understanding {rightly or wrongly} is that these picright claims in UK rarely go to court, I want to set the offer at a level that would not cause me an issue with the courts, on the offchance that it went that far...

[AndyJ]

Hi again,

Both PicRights and you know that £660 is a ridiculously inflated figure. They have to make money from their dubious business model and at the same time make money for their clients Reuters, and ultimately, the copyright owner who is the photographer. The civil law system is only interested in the restitution of what is due to the rights owner, and so there is a mismatch.

Not being able to find this exact image available elsewhere at a sensible fee is annoying but not fatal to you making a counter-offer based on the market value of the image you would have bought a licence for if faced with the choice at the outset. You don't mention if the PicRights' demand included a breakdown of how they arrived at the 660 figure, but if they did do this, just concentrate on the actual Reuters standard fee, which I imagine is still in hundreds rather than tens of pounds. Anything beyond this figure amounts to punishment and a court would not be interested in awarding damages based on that element unless it could be proved that you acted in flagrant manner so as to warrant additional damages. Typically, such behaviour might involve removing any embedded copyright notice or failing to take down the image when first notified of the alleged infringement.

As you know I can't advise you on the detailed manner in which you conduct your negotiations which might lead to full-blown litigation in court, although I think this outcome is highly unlikely. The best I can suggest is to take a figure, based on your research of the market for this type of image, and use that as your benchmark. You will need to be robust when making your response to their demand and be ready for it to be rejected. They will be relying on your natural inclination to get this matter settled and out of the way as soon as possible. The longer you hold out, the less attractive it is to PicRights because it is costing them time and resources to persue the matter. How you handle that part is entirely up to your appetite for risk versus the aforesaid desire to get the matter resolved and allow you to move on.

Good luck.

[Jblake]

Hi Andy, the £660 figure did not include a breakdown of how they arrived at the figure. They are looking for me to pay in the next few days.

IF, in my next response to them {this would be my 2nd response} I ask them more questions, INSTEAD OF making a low offer, such as:
- please provide a breakdown of how you arrived at £660
- please provide proof of copyright ownership / registration
- please provide proof that the image of Reuters is 100% the same as the image I have alleged to infringe

would they try to bully me with a higher figure than £660? How would a court view that IF it went to court?

Surely I can argue that I want to be sure this is a legitimate request by them, before making an offer?

How do you think that strategy would play out?

[AndyJ]

You are perfecly entitled to ask for a breakdown of the £660 and for proof of copyright ownership etc. Unless the photographer was an employee of Reuters at the time the photograph was taken, it is unlikely that they are the owners of the rights in it, unless the photographer has assigned the full copyright to them. Most freelances wouldn't do this, and will only have entered into a contract with Reuters for them to distribute the image. That is their function as a picture agency (amongst other activities). If this is the situation, then Reuters alone do not have the legal standing (see section 96 CDPA) to take the claim to court without the photographer's permission. At best, they may have some paperwork which entitles them to try and recover unpaid licence fees, which in turn they have sub-contracted to PicRights.

[Jblake]

Thanks for the reply Andy. What about the other questions raised in my last post? For example, is it reasonable to just raise more questions at this stage without making a financial offer to settle, or as this is my 2nd response, does this give picrights more justification to increase the amount above 660? I think the photographer might be an employee of reuters.

[Jblake]

reuters described it {please see my original posts} as a "rights managed" image...does that tell you if they just manage it on behalf of the photographer? or that they own it and can directly take me to court?

[AndyJ]

Hi Jblake,
Soryy, I should have added that it is acceptable to ask for this information without making a counter-offer. In fact if they can't satisfactorily answer the questions about ownership and the makeup of the £660 you could legitimately cease dealing with them because they have not complied with the pre-action protocol required by the courts. And I can see no reason why they would use this as an excuse to raise the value of the demand. Obviously since the £660 figure is already arbitrary, they could make up another figure but it wouldn't make any difference if the matter went to court, because the court would try to determine the true market value for the licence, not some Mickey Mouse figure dreamed up by PicRights.

To save time, let me refer you to this article about the difference between Royalty Free and Rights Managed stock photography: https://www.stockphotosecrets.com/quest ... -mean.html
For the reasons I explained earlier, Reuters like to work on a Rights Managed basis because this allows them to tailor the licence for exclusivity (for instance on a territorial basis) or duration, because they mainly deal with news and media outlets.

[Jblake]

Thanks Andy, really appreciated.

[Jblake]

Andy, I am not sure if this applies in the UK? Does it make sense to ask them for a "deposit copy", as per this article https://cjfoxlaw.com/law/is-picrights-legitimate/ and this line of text in that article "We, in return, demanded to see the deposit copy (the documents that go to the copyright office to show what you’ve claimed rights over)."

I recognise that it is a US based article, so I am not sure if the idea of "deposit copy" applies in UK?

[Jblake]

The same article mentions this too which ties in {I think} with what you mentioned earlier "However, it seems that sometimes the individual or company who owns the copyright is not involved. Allegedly, PicRights collects fees on behalf of the photographer without explicit engagement (note: this is based on anecdotal evidence and my own personal experience)."

..and I saw this too "they also might not have the rights they claim they do. Their letters aren’t always telling the entire story, and they often — in my experience— overstate their rights and the remedies available to their clients. They may not have the right to claim those “big money” damages."

Any thoughts on all of this?

Thanks

[AndyJ]

No, a deposit copy only applies in the case of the USA where someone has registered the work with the US Copyright Office. They have to do that before they can take action for copyright infringement in a US Federal Court. The UK doesn't have a registration system for copyright.

On the separate issue of exactlly who owns the copyright - and therefore who is the person who is able to take the claim to court if necessary - this is why you need to get PicRights to clarify matters. My understanding is that they are acting on behalf of Reuters, who in turn is acting as agents for the copyright owner. However as I haven't seen PicRights' actual demand, I may be wrong about that.